David Taylor v Ventia Pty Ltd
[2022] FWCFB 250
•30 DECEMBER 2022
| [2022] FWCFB 250 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
David Taylor
v
Ventia Pty Ltd
(C2022/6770)
| VICE PRESIDENT CATANZARITI | SYDNEY, 30 DECEMBER 2022 |
Appeal against decision [2022] FWC 2409 of Deputy President Lake at Brisbane on 15 September 2022 in matter number C2022/4130 – permission to appeal refused.
David Taylor (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Lake, issued on 15 September 2022, for which permission to appeal is required. The Decision concerned an application lodged by the Appellant under s.365 of the Act, alleging contraventions of Part 3-1 of the Act associated with his alleged dismissal by Ventia Pty Ltd (the Respondent).
The Appellant’s originating application was filed one day outside of the 21-day statutory time limit. The Decision therefore considered whether an extension of time should be granted for the filing of the application. The Deputy President considered the relevant factors in s.366(2) of the Act and ultimately found that no exceptional circumstances existed to satisfy the grant of an extension of time. The Deputy President therefore dismissed the application.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed an outline of submissions and made further oral submissions at the hearing on 21 November 2022.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Decision first set out the background to the events leading to the Appellant’s dismissal. These events are summarised as follows:
· 30 January 2021 – Appellant’s last day of work. Following this the Appellant took five days leave and was on unpaid leave thereafter.
· 17 November 2021 – the Respondent wrote to the Appellant seeking an update on his ongoing employment with the company and invited the Appellant to provide submissions as to whether he was likely to return to work on or after 1 December 2021.
· 30 November 2021 – the Appellant provided written submissions to the Respondent, indicating that he could not return to work as he had been threatened with physical violence by a co-worker on two separate occasions.
· April – June 2022 – the Appellant attempted to contact the Respondent to follow up on the status of his employment without success.
· 23 June 2022 – the Appellant was sent a notice of termination via email.
· 24 June 2022 – the Appellant alleges he only saw the termination email on this date, when he was randomly checking his email to see if the Respondent had replied to his previous correspondence.
At first instance, the Appellant alleged he was dismissed after exercising a workplace right to report his co-worker for threatening physical violence against him and that he was treated less favourably than other workers because he is an Indigenous Australian. In response the out of time issue, the Appellant submitted that his application was made within time as he did not see the termination email until 24 June 2022. The Appellant submitted that he has limited computer literacy and relies on his phone to check emails, which does not have a notification system in place to alert him of new emails. The Appellant contended that the statutory time limit should have commenced on 25 June 2022, the day after he first became aware of his dismissal. In support of his submission, the Appellant referred to the Full Bench decision of Mohammed Ayub v NSW Trains.[2]
The Appellant submitted that on 14 July 2022, he used the computer facilities at the North Pilbara Jobs and Skills Centre to lodge his application and received a response stating that his email had been delivered. The Appellant submitted that later that afternoon, he checked his emails and found that his application had not gone through, and it was too late in the day to do anything about it. The Appellant then re-submitted his application the following day with assistance from staff at the Jobs and Skills Centre.
The Respondent contended that the Appellant’s circumstances are not ‘unusual or extraordinary’. The Respondent submitted that the Appellant’s contention that a notice of termination is not received until the recipient has read the email was misconstrued, and that the Appellant’s ignorance, unawareness or mistaken understanding of the time limit was not an exceptional circumstance. The Respondent also rejected that the Appellant’s claim that he was ‘technologically incapable’ as he was able to configure his phone to receive emails. The Respondent submitted that the Appellant waited several days to take any steps to make the application, did not attempt to contest the dismissal and that the application itself has no merit. The Respondent maintained that the Appellant was dismissed following his long-term absence and refusal to return to work. The Respondent also denied that they took adverse action against the Appellant.
The Deputy President then turned to consider the date the Appellant’s dismissal took effect. The Deputy President noted that the dismissal takes effect when it is communicated to the employee and there is no requirement for the termination email to be read or acknowledged. The Deputy President was satisfied that the termination email was received at the Appellant’s usual email address on 23 June 2022 and that the Appellant did not provide evidence as to why receipt of the email in his inbox on 23 June 2022 should not constitute a reasonable opportunity to become aware of the dismissal. Therefore, the Deputy President found that the date of dismissal was 23 June 2022, and that the application was lodged one day late.
The Deputy President then considered the factors in s.366 of the Act to decide whether the Commission should allow a further period for the making of the application. Considering the reason for the delay (s.366(2)(a)), the Deputy President took the view that the Appellant did not provide an adequate reason for the delay and noted that the Appellant’s interpretation of Ayub is incorrect. The Deputy President found that the Appellant’s misunderstanding of the case law or miscalculation of the statutory timeframe is not a reasonable excuse for the delay. Finally, the Deputy President noted that despite alleging to have genuinely believed the Appellant lodged his application on 14 July 2022, the Appellant had not provided any evidence or submissions explaining why he did not attempt to file beforehand.
Having regard to s.366(2)(b), the Deputy President accepted that the Appellant did not take any action to dispute the dismissal with his employer other than filing the general protections application. The Deputy President accepted that the Respondent was not prejudiced by the delay in making the application (s.366(2)(c)) and that he could not determine the merits of the application given the limited material before him (s.366(2)(d)). Considering, s.366(2)(e), the Deputy President acknowledged that the Appellant submitted that he feels he was treated less favourably because he is an Aboriginal person, however he noted that the Appellant provided no further material to support this allegation.
In conclusion, having regard to all the matters he was required to take into account under s.366(2) of the Act, the Deputy President was not satisfied that the requisite exceptional circumstances existed. The Deputy President therefore declined to grant an extension of time and dismissed the application.
Grounds of Appeal and Submissions
The Appellant’s grounds of appeal are contained in his Form F7 – Notice of Appeal and written submissions. In summary, the Appellant alleges the following significant errors of fact:
1. The Appellant alleges error at [24] of the Decision. The Appellant submits that he called and emailed the Respondent numerous times to follow up about his employment status, however he did not receive a reply to these emails. The Appellant submits that he had a relevant medical report which he needed to provide to the Respondent. The Appellant submits he had given up checking his emails as the Respondent did not reply and he was no longer expecting any important emails. The Appellant submits he had not received a payslip from the Respondence since 13 April 2022 and not received correspondence from the Respondent since 30 November 2021. The Appellant submits that 30 days after his last email to the Respondent they sent him the termination letter. The Appellant submits that he was not expecting any correspondence from the Respondent and that this explains why he was not in receipt of the termination email.
2. The Appellant also alleges error at [31] and [32] of the Decision. The Appellant submits that he believed his application was lodged given it was received and that he did not know the application could not be opened. In response to why he did not attempt to file an application before 14 July 2022, the Appellant submits that he did not file earlier because it took all that time to file the current application.
In terms of why the appeal is in the public interest, the Appellant submits that he exercised a workplace right when he reported threats of physical violence and harm in the workplace and that the Respondent took no action in response to these reports. The Appellant submits that the investigation had a ‘predetermined outcome’, conflicts of interest and that his evidence was never used. He submits that the Respondent did not follow their duty of care and that he was dismissed by the Respondent without a valid reason.
Principles on Appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal. An appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[7]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[9] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Relevantly, the decision under appeal is of a discretionary nature. Such a decision can be successfully challenged on appeal only if it is shown that the discretion was not exercised correctly.[10] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”[11]
Consideration
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. We consider that the Appellant’s submissions are merely an expression of his dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of his case as put to the Deputy President at first instance. The Appellant has alleged significant errors of fact at [24], [31] and [32] of the Decision. We have taken these submissions into account and do not find any error, let alone appealable error, in these findings. Further, we note that the information provided by the Appellant as to his attempts to follow up with the Respondent regarding his employment status are immaterial to the Deputy President’s finding as to when he became aware of the termination email at [24] of the Decision. The fact that the Appellant was not expecting an email from the Respondent does not mean that he was not in receipt of the email or that the Appellant did not have a reasonable opportunity to become aware of the dismissal. Additionally, we note the Appellant’s submissions on appeal provide for why he did not file his application before 14 July 2022, namely that he was working on the application until this time. However, we are satisfied that this submission would not have impacted the Deputy President’s findings, especially as the remaining factors in s.366(2) did not support a finding that an extension of time should be granted.
Further, we note that a decision as to whether to extend time under s.366(2) of the Act involves the exercise of a broad discretion. Considering the submissions and evidence in this matter, we are not satisfied that the Appellant has established an error of the House v The King type. The Deputy President considered all the relevant factors and then weighed whether an extension of time should be granted. Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence. We are satisfied that the Deputy President’s findings were within his discretion and open to him on the evidence.
Finally, we have considered whether this appeal attracts the public interest, and we are not satisfied that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Taylor, on his own behalf.
Mr A Megerdichian, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
21 November.
[1] [2022] FWC 2409.
[2] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [48] (‘Ayub’).
[3] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] Wingate v Monadelphous[2014] FWCFB 5913.
[11] House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
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